Australia: Knocked out: Concussion issues for Australian rugby codes

IN BRIEF

"On concussions, I think is one of these pack
journalism issues, frankly... There is no increase in concussions,
the number is relatively small... The problem is a journalist
issue. "

NFL Commissioner Paul Tagliabue in December 1994

On 22 April 2015, the matter of concussion in sport became much
more than a journalist's issue. A problem that had been
simmering for years had reached its peak, as final approval was
given to a class-action lawsuit settlement in the US District Court
for the Eastern District of Pennsylvania. The lawsuit joined
actions brought by over 5,000 former NFL players who had retired on
or before 7 July 2014. At the heart of the case was the NFL's
denials of the risks stemming from brain trauma whilst playing the
sport and the NFL's alleged failure to put adequate protocols
in place to protect its players. That alleged failure will now cost
the NFL somewhere in the vicinity of $1 billion in settlement
payments over the next 65 years.

For those in the Australian legal industry, this is simply
workplace health and safety 101 – an employer or business has
a primary duty of care to ensure its workers and others are not
exposed to a risk to their health and safety. A primary duty of
care exists when employers direct or influence work carried out by
workers, engage workers to carry out such work and have management
or control of the workplace. The NFL was subject to a similar duty
of care, primarily by virtue of the collective bargaining
agreements with the players.

This news from the US would not have gone unnoticed by those in
charge of Australia's two most combative winter football codes;
the Australian Rugby Union (ARU), and the National Rugby
League (NRL). Both the ARU and NRL have in recent times
taken steps to strengthen their collective concussion protocols and
limit their ultimate exposure to liability. It is also understood
that the ARU Super Rugby franchises and NRL clubs have also made
attempts to implement measures to better limit and manage the
occurrence and effect of concussion on players.

But are these Australian codes doing enough? And what are their
current policies anyway?

CURRENT POLICIES

George Smith was one of the greatest ever Wallaby forwards. In
2013, playing for the Wallabies against the British and Irish
Lions, Smith suffered a traumatic head clash and was helped from
the field in a daze. The decision to allow him to return to play
only minutes later was heavily criticised by many, including
commentators and medical experts. The incident appeared to be one
of the reasons that the International Rugby Board (now known as
simply 'World Rugby') updated its concussion guidelines in
January 2014.

Those guidelines include the following:

compulsory removal of players with a head injury from the field
where the diagnosis is not immediately apparent

assessment of players with a head injury by a 'Certified
Medical Professional' through the use of a 'Pitch Side
Concussion Assessment' (PSCA)

a 'Graduated Return to Play' (GRTP)
program

all players who complete a GRTP must receive medical clearance
from a doctor or an approved healthcare professional before
returning to play

The ARU has followed the World Rugby Concussion Protocol in
adopting its own ARU Concussion Guidance (Rugby Public) policy,
which includes guidelines for six steps of managing concussion
– "Recognise, Remove, Refer, Rest, Recover and
Return".

The ARU has also been active in implementing further measures,
such as:

the creation of a 'Concussion Advisory Group'

the appointment of a full-time concussion specialist on its
staff

a doctor on the sideline of all domestic international matches
solely watching out for concussion (acting as a second set of
independent eyes alongside the doctor assessing players under the
PSCA)

In rugby league, the NRL claims to have a concussion policy
although recent searches only reveal the "Management of
Concussion in Rugby League Guidelines" and the "Return to
Play Policy", the latter of which deals with all types of
injuries. The Management of Concussion Guidelines do provide steps
for management of concussion, including game-day and follow-up
management.

The NRL claims to have also recently strengthened its position
on concussion, following the NRL handing down a $20,000 fine (of
which $10,000 was suspended) to the Parramatta Eels for their
mishandling of three concussion incidents earlier this season. The
NRL claims to have amended its policy so that:

players must not return to the field if they have exhibited a
loss of consciousness, or have fallen to the ground without taking
protective action or suffered a seizure, memory impairment or
ataxia

players must leave the field if they suffer from an injury that
could appear to lead to concussion, such as a facial fracture,
however, they may return to the field following testing by medical
staff if appropriate

AREAS FOR IMPROVEMENT

Whilst the ARU and the NRL have begun to address the issues of
concussion in sport, there is still a lot more to be done. Both
codes have implemented initiatives, good as they are, which appear
to be more public policy than codified rule or law. Both codes have
guidelines and 'best practice' policies, but nothing as yet
concrete to ensure all participants comply with those guidelines
and policies. It does not appear that either code has yet developed
a structured and uniform set of rules and penalties applicable to
incidents involving concussion. No doubt, there will come a time
when the codes set out a table of penalties, including fines and
suspensions, for various types of breach.

In the current state, however, clubs or players who act contrary
to the guidelines and policies are at the discretion of the
governing bodies. Whilst we acknowledge that both codes have catch
all clauses in their Codes of Conduct (i.e. in the ARU Code of
Conduct – cl. 3(h) "All participants in the game are
bound to comply with the ARU's Safety Directives for Referees,
Coaches and Players") and standard player contracts,
there is nothing more definitive. A stronger, more uniform and
publicised set of penalties would assist all participants and act
as a deterrent.

In addition, there are further issues for the codes to consider,
including that the NRL ensure that diagnosis of concussion is
provided by independent doctors (as opposed to club doctors under
pressure from clubs) and that baseline testing in both codes also
be conducted by independent doctors.

In recent years, sport has finally woken up to the severe
physical risk and side effects of concussion. It is now obvious
that there are very real risks for sporting bodies and clubs if
they do not put adequate structures in place. The ARU and NRL
appear to be on the right path to addressing these concerns but
must continue to be proactive in the development, publication and
enforcement of their respective concussion policies.

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